MICHAEL McGOUGH

Catholic judges and a higher authority

Roberts' nomination raises questions about jurists caught between the law of the land and the laws of their church.

It's interesting to note that Catholic judges who abide by Roe vs. Wade -- or say they will -- have been bystanders in the recent debate over potential conflicts between a public official's religious beliefs about abortion and his official duties. But that is changing with the Supreme Court nomination of John G. Roberts Jr., who, if confirmed, would be the fourth Catholic on the Rehnquist court.

According to a column on this page by Jonathan Turley, Sen. Richard Durbin of Illinois asked Roberts how he would react if the law required a ruling that the church considers immoral. Roberts reportedly replied that he probably would have to recuse himself. That exchange has been denied by Durbin, but whether it happened or not, the report has unleashed a furor over what trumps what for a sitting judge, faith or law?

In the case of Roberts, I'd say we already know the answer.

As a nominee for the U.S. Court of Appeals, he told the Senate Judiciary Committee that "nothing in my personal views would prevent me" from applying Roe as an appeals court judge. That doesn't mean that he might not overturn Roe as a Supreme Court justice, given that the high court isn't as constrained to follow precedent as a lower court. But on the basic question of whether or not the law trumps faith for a judge, Roberts has spoken.

Amore interesting question arises from the other side of the equation: If law trumps religion for a Catholic judge, how will his church respond?

Catholic antiabortion activists and some bishops have suggested that canon law requires that Catholic politicians who support abortion rights be denied Holy Communion. Two provisions are often cited in this regard: Canon Law 1398, providing for the excommunication of anyone who "procures" an abortion (a stretch even for some pro-lifers as they try to apply it to politicians) and Canon Law 915, which denies Communion to those who "obstinately persist in manifest grave sin."

On the website of the American Life League, President Judie Brown has urged Catholic bishops to warn 72 pro-choice Catholics in Congress that they are in violation of Canon Law 915.

"It is clear that each of these elected officials is either ignorant of church teaching or has made a conscious decision to ignore it," Brown said. "The job of the bishop is therefore quite simple and straightforward: to teach the truth, to warn the offender, and if that does not work, to deny the sacrament to the offender."

But why don't Brown and others in her camp target judges as well? "We have chosen," Brown told me, "to focus on elected officials at the state and national level when asking [bishops] to enforce Canon Law 915 and deny Holy Communion to professed Catholics who also publicly support abortion, because they are creating scandal."

But couldn't the same thing be said about judges? "We have not exposed their hypocrisy yet," Brown said, adding that her group was concerned about Roberts because his comments about recognizing Roe as "settled law" "do not bode well for his alleged Catholic identity."

The American Life League is more purist than other pro-life groups, and Catholic bishops disagree about whether and to what extent pro-choice Catholic politicians should be called on the ecclesiastical carpet. Bishops with a more liberal view can take comfort in a statement issued by the U.S. Conference of Bishops last year.

The decision to withhold Communion from "Catholics in political life," the statement said, "rest[s] with the individual bishop in accord with the established canonical and pastoral principles."

But for those bishops who do take a hard line against pro-choice legislators, there is no excuse in theology or logic for holding back from sanctioning Catholic judges -- such as Supreme Court Justice Anthony M. Kennedy -- who vote to affirm or apply Roe vs. Wade.

Not targeting judges might be explained by the differences between legislators and adjudicators. Judges (in theory anyway) are ruling on the basis of a disinterested reading of the law, not their personal beliefs. But pro-choice members of Congress can similarly argue that their pro-choice votes are a reflection not of their own views but of the desires of their constituents.

Whether the public official's defense is "the polls made me do it" or "precedent made me do it," isn't the moral issue the same?

Of course, denying Holy Communion to judges would pose a bigger PR problem for a bishop or even an interest group -- but in which book of the Bible or papal encyclical is it written that public relations overrides principle?